OUR NEWS

After attending a family event and enjoying a couple of cocktails, a 49-year-old Gwinnett County resident and business-owner caught the attention of local law enforcement when they spotted her car weaving on the road.

The police officer pulled her over, asked about any pre-existing medical issues and began running through a series of sobriety tests.

The three standardized NHSTA-approved tests are:

• Walk and turn: take 9 steps down a line, turn, and come back 9 steps.

• 1 leg stand: hold one leg up and count to 30.

• Horizontal Gaze Nystagmus (HGN): follow the pen as the officer moves it about 12-15 inches from your eyes.

All of the officer’s tests were performed correctly and the Breathalyzer registered a 0.143 blood alcohol concentration (BAC) – almost double the 0.08 standard for a DUI conviction. Later that evening, the business owner was arrested for DUI.

The defendant contacted criminal defense attorney Patrick McDonough, who represented her throughout her case. If convicted, the she would have faced expensive fines, jail time, probation, community service and a suspension of her driver’s license.

However, within the year, McDonough won at trial. She was found not guilty of the DUI charge.

So, how exactly did Mr. McDonough win this case? In this particular situation, McDonough’s strategy was proving that the devil was in a few overlooked – yet crucial – details.

When addressing the police officer, Mr. McDonough’s client politely denied having prior medical issues. In actuality, some of the medical factors she had learned to live with – neck problems, arthritis in the back, recent nasal surgery and a leg that had been broken in 3 places years ago –hindered her ability to pass the field tests. The road was wet from the evening’s rain, so she also opted to stay in her high heels.

Taking the defendant’s previous injuries, the slick roads, a natural sense of fear and an unfortunate shoe choice into consideration, the judge realized that it would be nearly impossible for anyone to pass the battery of tests under these circumstances.

Furthermore, Law enforcement officers claimed she had 4 of 6 errors (known as “clues”) during the Horizontal Gaze Nystagmus (HGN) test, which is more consistent with someone who is closer to a 0.08 BAC. Since she blew a 0.143 BAC and the tests contradict each other, the defense was able to argue that they should not be considered.

Even the Breathalyzer’s results were seen as invalid in court. As an expert testified, the Intox 5000 device has a number of potential problems that may lead to inaccurate results.

But what ultimately won the case for Mr. McDonough was the following: a person is supposed to be watched for 20 minutes before performing the breath test.

In the state of Georgia, this “watch” period can include the drive to the station. Records obtained by McDonough show that the officer who drove his client to the station was not trained to administer the Intox 5000, and subsequently had not been educated on what to look for during this period. As stated in the device’s guide, any person who burps, belches or regurgitates could receive an unfairly high reading.

To this point, the expert testified that he had performed control tests where people were 0.00 BAC (at the proper deep lung breath) and blew a 0.20 after exhibiting these bodily functions. This error lead to a BAC measured at 2½ times the legal limit in sober individuals.

Since 911 reports show that the test was administered only 13 minutes after being brought into the intake room, the true 20 minute waiting period was not fulfilled. Without this requirement being met, the test could not be considered accurate or the evidence valid.

McDonough’s client testified along with her brother and sister-in-law that she had 2 drinks over 4 hours and was able to safely drive. McDonough was able to convince the Judge that the state did not prove their case beyond a reasonable doubt.

McDonough conceded that his client was weaving, but not because she was under influence, but because she was adjusting the radio.

If you have been accused of driving under the influence of alcohol, the first thing you should do is speak to a qualified criminal defense attorney.

At Andersen, Tate & Carr, our attorneys are dedicated to reaching the best possible outcome for our clients. Our criminal defense attorneys, Patrick McDonough and Trinity Hundredmark, have combined experience of more than 30 years representing clients facing criminal charges in Georgia. For more information, or to request a case evaluation, contact our law office at 1-770-822-0900.